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IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---

PFLUEGER, INC.,

Respondent/Plaintiff-Appellant,

vs.

AIU HOLDINGS, INC., NATIONAL UNION FIRE INSURANCE COMPANY OF 

PITTSBURGH, PENNSYLVANIA,

Respondents/Defendants-Appellees,

and

NOGUCHI & ASSOCIATES, INC., Petitioner/Defendant-Appellee.

SCWC-17-0000234

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-17-0000234; CIV. NO. 09-1-1326)

FEBRUARY 22, 2023

NAKAYAMA, ACTING C.J., McKENNA, WILSON, AND EDDINS, JJ.,

AND CIRCUIT JUDGE KIM, IN PLACE OF RECKTENWALD, C.J., RECUSED

OPINION OF THE COURT BY NAKAYAMA, J.

This is an insurance broker malpractice case spanning

approximately fourteen years. Respondent/Plaintiff-Appellant 

Pflueger, Inc. brought negligence and negligent malpractice 

claims against its insurance broker, Petitioner/DefendantElectronically Filed

Supreme Court

SCWC-17-0000234

22-FEB-2023

08:16 AM

Dkt. 11 OP
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Appellee Noguchi & Associates, Inc. (Noguchi). In the first 

chain of proceedings (Pflueger I), partial summary judgment was 

granted in favor of Pflueger and a jury found in favor of 

Pflueger. After the ICA remanded to the circuit court to 

include previously excluded testimony, the circuit court in the 

instant appeal granted summary judgment in favor of Noguchi, 

finding Noguchi’s evidence negated the causation element of 

Pflueger’s claim and Pflueger offered no evidence to the 

contrary. The ICA then disagreed, holding summary judgment for 

Noguchi was improper in a Summary Disposition Order, with a 

majority and concurring opinion. 

Currently at issue is what Noguchi must demonstrate on 

summary judgment to negate the causation element of the 

negligence and negligent malpractice claims against it. Noguchi 

contends it need only show that Pflueger’s insurer, National

Union Fire Insurance Company of Pittsburgh, Pennsylvania 

(National Union), would have denied coverage even if Pflueger’s 

grand jury subpoena matter were timely tendered in order to 

negate the causation element on summary judgment. By accepting 

this argument, both the circuit court and the ICA majority 

erred. We clarify that to negate the causation element on 

summary judgment, Noguchi instead would need to demonstrate that 

even if the grand jury subpoena matter were timely tendered to 

National Union, National Union would not have been legally 
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obligated to advance Pflueger’s defense costs. Accordingly, we 

vacate the ICA’s October 5, 2022 Judgment on Appeal, and remand 

to the circuit court for proceedings consistent with this 

opinion. 

I. BACKGROUND

A. Factual Background

Pflueger is an automotive retailer. Noguchi procured 

for Pflueger a Directors and Officers liability insurance policy 

from National Union for policy periods covering September 27, 

2007 to September 27, 2008, and September 27, 2008 to September 

27, 2009. The policy required that National Union “advance 

defense costs” for Pflueger against covered claims.1

On May 22, 2008, Pflueger and other entities were 

served with subpoenas related to a grand jury investigation.2 

Shortly thereafter, Pflueger’s Chief Financial Officer Randall 

Kurata met with Noguchi’s agents, Glenn Maruyama and Mike Bryan, 

 

1 The 2007-08 Policy provided Directors, Officers and Private Company 

Liability Coverage as follows:

This policy shall pay the Loss of [Pflueger] arising from 

a: (i) Claim first made against [Pflueger] . . . during the 

Policy Period . . . and reported to [National Union] 

pursuant to the terms of this policy for any Wrongful Act 

. . . . [National Union] shall, in accordance with Clause 4 

of this Coverage Section, advance Defense Costs of such 

Claim prior to its final disposition.

The 2008-09 policy is worded exactly the same as above.

2 In the ensuing months, further subpoenas were also served on Pflueger 

and other entities. 
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allegedly to discuss the grand jury subpoenas. At the meeting, 

Noguchi’s agents advised Pflueger that there was no claim under 

the insurance policies that National Union issued to Pflueger.3 

Noguchi did not forward a claim or the subpoenas to National 

Union or to National Union’s “authorized representative” AIU

Holdings, Inc. Pflueger hired multiple law firms to represent 

its interests in connection with the grand jury proceeding,

incurring substantial legal fees.

In February 2009, Pflueger’s attorney submitted a 

demand letter tendering Pflueger’s defense to National Union. 

On April 29, 2009, AIU claim analyst Dennis Van Dina responded 

to Pflueger’s attorney in two letters, one for each insurance 

policy, stating Pflueger’s claim was not covered because the 

claim was untimely.4 The letters then stated that even if timely 

 

3 The parties dispute what was conveyed during the meeting. Before the 

circuit court in the first chain of proceedings (Pflueger I), Pflueger 

contended it notified Noguchi that it received federal grand jury subpoenas: 

Kurata showed Noguchi’s agents a copy of all the subpoenas which were served 

on Kurata on May 22, 2008. Kurata then asked if there was coverage for the 

subpoenas, and Noguchi’s agent replied there was no claim unless an 

indictment was handed down. In contrast, Noguchi contended Kurata never 

showed subpoenas or any documents, rather the meeting was about the IRS 

requesting information. One of Noguchi’s agents testified he asked if 

anything like an indictment, subpoena, or anything more formal was handed 

down, and Kurata responded in the negative. The parties also disputed the 

basis for and the precise substance of the advice Noguchi’s agents gave.

4 The letters stated:

(1) Policy no. 052-68-49 has a Policy Period September 27, 

2007 to September 27, 2008. Coverage B states that the 

Policy provides coverage for Claims first made against the 

Company or an Individual Insured during the Policy Period 

or Discovery Period (if applicable). The Grand Jury 

Subpoena was issued on May 22, 2008. Thus, the matter will 
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reported, the materials submitted did not constitute a claim.5 

The letters stated "the language of the Policy requires that an 

indictment, information or similar document is necessary for a 

Claim as defined." After Pflueger’s counsel responded, Van Dina 

reiterated AIU’s position on May 13, 2009. 

B. Pflueger I: Relevant Background6

1. Circuit Court Proceedings

On June 10, 2009, Pflueger filed a complaint alleging 

claims of declaratory relief, negligence, negligent 

 

be deemed to have been made on May 22, 2008. Clause 7 

requires that a Claim must be both made and reported during 

the Policy Period or Discovery Period (if applicable)

. . . . However, this matter was submitted to National

Union on February 17, 2009; outside the applicable

reporting periods found with Clause 7 Notice/Claim

Reporting Provisions, and as amended by Endorsement #2.

Therefore, coverage is precluded.

(2) "Policy no. 052-68-49 [sic] has a Policy Period

September 27, 2008 to September 27, 2009. Coverage B

states that the Policy provides coverage for Claims first 

made against the Company or an Individual Insured during 

the Policy Period or Discovery Period (if applicable). The 

Grand Jury Subpoena was issued on May 22, 2008. Thus, the 

matter will be deemed to have been made on May 22, 2008; 

outside the Policy Period. Clause 7 requires that a Claim 

must be both made and reported during the Policy Period or

Discovery Period (if applicable) . . . . However, this 

Claim was made outside the Policy. Therefore, coverage is 

precluded. 

The second letter states the incorrect policy number. The correct policy 

number is 01-277-00-32.

5 Van Dina noted “assuming this matter was both made and reported as per

the requirements of the Policy, the materials submitted to National Union 

would not constitute a Claim.”

6 The first chain of proceedings is referred to as Pflueger I, and the 

second chain of proceedings is referred to as Pflueger II. Only the 

background pertinent to the instant issue will be briefly summarized. 
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misrepresentation, and breach of the duty of good faith and fair 

dealing against AIU/National Union and Noguchi. Pflueger 

brought negligence and negligent misrepresentation claims 

against Noguchi, alleging that Noguchi failed to tender the 

grand jury matter to AIU and National Union, and as a proximate 

result of Noguchi’s negligence, Pflueger was denied coverage for 

legal fees and costs associated with responding to the grand 

jury subpoenas and for liability that Pflueger may incur as a 

result of the claims made against it in the grand jury 

proceedings. Pflueger also alleged that Noguchi made untrue 

representations that the grand jury matter was not covered under 

the policies, and that Pflueger reasonably relied on these 

representations in declining for a time to tender the grand jury 

matter directly to AIU and National Union; as a proximate 

result, AIU and National Union deemed Pflueger’s eventual tender 

of the grand jury matter untimely and denied coverage.

Two AIU employees were deposed in 2011 and 2012:

Senior Complex Claims Director Tiffany Ngeo and claims analyst 

Van Dina.

Ngeo was asked whether it was AIU’s “position that 

there was no coverage afforded for the grand jury subpoenas, 

regardless of when they were reported to . . . AIU . . . .” 

Ngeo responded, “Well, we have two defenses. One of them for 

each of the policy [sic], is that it was either not made or 
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reported within the policy. And the other defense is that the 

grand jury subpoenas were not a claim per the policy.” Ngeo was 

also asked, “Is it fair to say that [AIU's] position is that, 

first, there's no coverage for the grand jury subpoenas –- grand 

jury subpoenas under the policy; and second, even if there was 

coverage, they were not reported timely[?]” Ngeo responded, 

“[T]he grand jury subpoenas do not meet the definition of a 

claim under either policy.”

Van Dina was asked, “Even if it had been made timely, 

it's not a covered claim; is that right?” Van Dina responded, 

“Right. Well, no. I'm sorry. Let me rephrase that. Not that 

–- it may not even constitute the definition of a claim.” Van 

Dina was later asked, “Assuming this claim had been reported to 

where you found it to be timely, would there still have be [sic] 

coverage under the policy?” Van Dina responded, “I do not 

believe, based on what I reviewed today, that –- that a claim 

would have been made at that time. So I would say that coverage 

would not be available.” Van Dina was asked again, 

“[R]egardless of whether the claim was reported in May of 2008 

allegedly when the insured received or was served with the 

subpoena or in February of 2009 when it came across your desk, 

your position with respect to coverage would not change?” Van 

Dina answered, “No.” Van Dina confirmed he believed the 

subpoenas were not claims under the policy.
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Pflueger finalized a confidential settlement agreement 

with AIU and National Union between January - March 2013. The 

claims against Noguchi remained. 

On May 15, 2013, Pflueger sought a partial summary 

judgment ruling that the IRS investigation and grand jury 

subpoenas constituted a covered claim under the insurance 

policies. On July 10, 2013, the circuit court granted in part 

and denied in part Pflueger’s motion for partial summary 

judgment. The circuit court granted the motion:

to the extent the Court finds that the Grand Jury 

Subpoenas, dated May 22, 2008 and directed at Pflueger, 

Inc. constitute a 'claim' as that term is defined under 

Insurance Policy No. 052-68-49 and Insurance Policy No. 01-

277-00-32 issued by National Union . . . to Pflueger, Inc., 

as the named insured.

On July 22, 2013 a jury trial commenced.

During trial, the circuit court excluded Van Dina's 

and Ngeo’s testimonies on hearsay grounds. Pflueger, Inc. v. 

Noguchi & Assocs., Inc., 136 Hawaiʻi 372, 362 P.3d 805, No. CAAP14-0001032, 2015 WL 7723045 at *2-3 (App. Nov. 23, 2015) (Mem. 

Op.). The jury returned a special verdict form indicating that 

it found Noguchi liable for negligence and negligent 

misrepresentation. The jury found that Pflueger was thirty 

percent negligent, Noguchi was seventy percent negligent, and

the amount of Pflueger’s damages was $837,079.31. The circuit 

court entered an Amended Final Judgment on July 11, 2014.
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2. Appellate Proceedings 

Noguchi appealed, and on January 7, 2016, the ICA 

entered a Judgment on Appeal vacating the circuit court’s 

July 11, 2014 Amended Final Judgment, pursuant to the ICA’s 

November 23, 2015 Memorandum Opinion, which held that the 

circuit court’s decision to exclude Van Dina’s and Ngeo’s 

testimonies was error because their testimonies were essential 

to Noguchi’s defense. Pflueger, Inc. v. Noguchi & Assocs., 

Inc., 136 Hawaiʻi 372, 362 P.3d 805, No. CAAP-14-0001032, 2015 WL 

7723045 at *5 (App. Nov. 23, 2015) (Mem. Op.). This court 

denied Pflueger’s application for writ of certiorari. Pflueger 

Inc. v. Noguchi & Associates, Inc., No. SCWC-14-0001032, 2016 WL 

830982 (Haw. Mar. 2, 2016). 

C. Pflueger II

1. Circuit Court Proceedings on Remand 

On April 11, 2016, Noguchi moved for summary judgment 

on causation grounds, arguing that the testimony of witnesses 

“fails to put forth any evidence which might support a finding 

of proximate cause against Noguchi.” In opposition, Pflueger 

noted the circuit court already ruled that the subpoenas were a 

claim under Pflueger’s insurance policies. Pflueger argued the 

testimony of five witnesses demonstrates that Noguchi was a 

substantial factor in bringing about Pflueger’s harm.
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The circuit court granted Noguchi’s motion for summary 

judgment on September 16, 2016. The circuit court held that in 

light of Van Dina’s and Ngeo’s testimonies that AIU would have 

denied the claim regardless of timeliness, the burden shifted to 

Pflueger to demonstrate Noguchi’s negligence was a legal cause 

of Pflueger’s injuries, which Pflueger did not do.

Pflueger filed a motion for reconsideration on 

September 26, 2016, arguing that the causation issue had been 

repeatedly decided in Pflueger’s favor in prior rulings, making

the “law of the case” doctrine apply in favor of Pflueger. 

Noguchi argued Pflueger’s law of the case argument was 

inapplicable, not controlling, and improper as it could have 

been made previously. The circuit court denied the motion for

reconsideration and issued a Final Judgment on March 14, 2017.

2. ICA Proceedings 

On March 24, 2017, Pflueger filed a notice of appeal. 

Pflueger argued (1) the circuit court erred in granting 

Noguchi’s motion for summary judgment because questions of 

material fact existed, and (2) the circuit court abused its 

discretion in denying Pflueger’s motion for reconsideration. 

In response, Noguchi maintained the burden shifted to 

Pflueger to demonstrate a genuine issue of material fact, which 

Pflueger did not do, making the grant of summary judgment for 

Noguchi proper. Noguchi contended the records before the court 
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were not sufficient to support a finding of causation. Noguchi 

also argued that Pflueger’s causation argument should be 

rejected because Pflueger did not make the argument before the 

circuit court. 

In its reply brief, Pflueger argued, among other 

things, that the bases of its arguments remained the same before 

the ICA as before the circuit court.

On August 31, 2022, the ICA issued a Summary 

Disposition Order, with a majority and concurring opinion, 

determining the circuit court erred in granting Noguchi’s motion 

for summary judgment. Pflueger, Inc. v. Noguchi & Assocs., 

Inc., 151 Hawaiʻi 430, 516 P.3d 984, No. CAAP-17-0000234, 2022 WL 

3928540 (App. Aug. 31, 2022) (SDO). The ICA vacated the circuit 

court’s March 14, 2017 Final Judgment and remanded.

The ICA majority accepted Noguchi’s premise that what 

AIU “would have done” had a timely tender been made was 

material. The majority agreed that “this testimony [of Van Dina 

and Ngeo] undermined the causation element,” but found that “it 

was not subject to only one inference and, thus, did not 

completely dispose of the causation element.” Therefore, the 

majority determined Noguchi did not meet its “burden of 

establishing that there was no genuine issue as to whether its 

conduct caused Pflueger's losses,” making the issue one for the 

fact finder. The majority also noted that even if Noguchi had 
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met its burden, Pflueger submitted opposing evidence that raised 

genuine issues of material fact.

In a concurrence, Judge Hiraoka agreed that Noguchi 

did not satisfy its burden as a summary judgment movant, but did 

not agree that what AIU “‘would have done’ had Noguchi timely 

tendered Pflueger’s subpoena” is material. The concurrence 

explained that had Noguchi timely tendered the subpoena:

National Union would have had three options: “(1) advance 

Pflueger's defense costs to respond to the subpoena; (2) 

decline to advance defense costs; or (3) advance defense

costs under a reservation of rights. National Union's 

denial of a tender would not end the story; Pflueger could 

have filed a declaratory relief action, with or without a 

claim for bad faith. If National Union agreed to advance 

defense costs under a reservation of rights, National Union 

could itself have filed a declaratory relief action, with 

or without a claim for reimbursement of defense costs 

advanced. 

If a court were to rule that National Union was not 

obligated to advance Pflueger's defense costs, Noguchi's 

failure to tender the subpoena to National Union could not 

have been the legal cause of any damage to Pflueger; even 

if Noguchi had tendered, National Union would not have been 

obligated to advance defense costs. On the other hand, if 

a court were to rule that National Union would have been 

obligated to advance defense costs, Pflueger would satisfy 

the legal cause element of its negligence claim against 

Noguchi.

Thus, the concurrence determined that whether National 

Union would have actually been obligated to advance Pflueger’s 

defense costs if Noguchi timely tendered the subpoena was 

material, not what National Union would have done in response to 

a timely tender of the subpoena. Therefore, to sustain its 

burden as the summary judgment movant, Noguchi had to show that 

even if Pflueger’s subpoena had been timely tendered, National 
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Union would not have been obligated to advance defense costs. 

“Only then could Noguchi’s failure to tender the subpoena to 

National Union not have been a legal cause of damage to 

Pflueger.” Consequently, the concurrence concluded that Noguchi 

did not meet its burden and the circuit court erred by granting 

summary judgment.

D. Application for Writ of Certiorari

On November 30, 2022, Noguchi timely filed an 

application for writ of certiorari, asking this court to vacate 

the ICA judgment and reinstate the circuit court’s grant of 

summary judgment in favor of Noguchi. Noguchi raises three 

questions: 

(1) Whether the ICA grievously erred in holding Noguchi 

did not meet its initial burden on summary judgment, 

violating law of the case and ignoring requirements 

for causation in cases involving insurance agent 

malpractice.

(2) Whether the ICA grievously erred in finding that a 

question of fact existed as to what AIU would have 

done with a timely tender in spite of the fact that 

nothing contradicted its representatives’ unambiguous 

testimony that they would have denied it. 

(3) Whether the ICA grievously erred in reversing a grant 

of summary judgment based on arguments and evidence 

that were not presented to the trial court (or even 

in Pflueger’s brief on appeal). 

II. STANDARD OF REVIEW

A. Summary Judgment 

On appeal, the grant or denial of summary judgment is 

reviewed de novo. Furthermore,

[S]ummary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there 
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is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. A 

fact is material if proof of that fact would have the 

effect of establishing or refuting one of the essential 

elements of a cause of action or defense asserted by the 

parties. The evidence must be viewed in the light most 

favorable to the non-moving party. In other words, we must 

view all of the evidence and inferences drawn therefrom in 

the light most favorable to the party opposing the motion.

First Ins. Co. of Haw. v. A & B Props., Inc., 126 Hawaiʻi 406, 

413, 271 P.3d 1165, 1172 (2012) (citations omitted). 

The burdens of the moving and non-moving parties on 

summary judgment are as follows: 

The burden is on the party moving for summary judgment 

(moving party) to show the absence of any genuine issue as 

to all material facts, which, under applicable principles 

of substantive law, entitles the moving party to judgment 

as a matter of law. This burden has two components.

First, the moving party has the burden of producing support 

for its claim that: (1) no genuine issue of material fact 

exists with respect to the essential elements of the claim 

or defense which the motion seeks to establish or which the 

motion questions; and (2) based on the undisputed facts, it 

is entitled to summary judgment as a matter of law. Only 

when the moving party satisfies its initial burden of 

production does the burden shift to the non-moving party to 

respond to the motion for summary judgment and demonstrate 

specific facts, as opposed to general allegations, that 

present a genuine issue worthy of trial. Second, the 

moving party bears the ultimate burden of persuasion. This 

burden always remains with the moving party and requires 

the moving party to convince the court that no genuine 

issue of material fact exists and that the moving part is 

entitled to summary judgment as a matter of law.

French v. Hawaiʻi Pizza Hut, Inc., 105 Hawaiʻi 462, 470, 99

P.3d 1046, 1054 (2004) (quoting GECC Fin. Corp. v. Jaffarian, 79 

Hawaiʻi 516, 521, 904 P.2d 530, 535 (App. 1995)) (emphasis 

omitted).
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III. DISCUSSION

On summary judgment, Noguchi cannot negate the 

causation element by demonstrating that National Union would 

have denied coverage even if Pflueger’s grand jury subpoena 

matter were timely tendered. We believe Judge Hiraoka’s 

concurrence provides a cogent analysis and a path forward in 

analyzing this matter. 

This court has explained: 

[W]here the non-movant bears the burden of proof at trial, 

a movant may demonstrate that there is no genuine issue of 

material fact by either: (1) presenting evidence negating 

an element of the non-movant's claim, or (2) demonstrating 

that the non-movant will be unable to carry his or her 

burden of proof at trial.

Ralston v. Yim, 129 Hawaiʻi 46, 57, 292 P.3d 1276, 1287 (2013). 

Noguchi attempted to demonstrate that the causation 

element of Pflueger’s claims was negated by the testimony of Van 

Dina and Ngeo, which purportedly shows that no causal connection 

existed between Noguchi’s negligence and Pflueger’s injury

because National Union would have denied coverage regardless of 

the claim’s timeliness.7, 8

 

7 Noguchi indirectly or impliedly made this second argument before the 

circuit court, and made the argument more clearly before the ICA.

8 Noguchi also argued before the circuit court that Pflueger would not be 

able to carry its burden of proof at trial due to lack of evidence, 

specifically that “Pflueger has presented no evidence that Noguchi’s conduct 

was a contributing factor in AIUH’s decision to deny coverage to Pflueger.” 

Noguchi appears to have dropped this argument before the ICA and on 

certiorari. As such, this court will not address it.
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Noguchi misunderstands what it must demonstrate to 

negate the causation element of Pflueger’s claims. To prove 

causation, Pflueger must prove a case within a case, namely that 

National Union would be obligated to advance Pflueger’s defense 

costs if Pflueger’s grand jury subpoena matter were timely 

tendered to National Union. Pflueger needs to demonstrate that 

Noguchi was a substantial factor in causing Pflueger’s harm in 

order to establish causation. See Mitchell v. Branch, 45 Haw. 

128, 132, 363 P.2d 969, 973 (1961); see also Knodle v. Waikiki 

Gateway Hotel, 69 Haw. 376, 390, 742 P.2d 377, 386 (1987). 

Noguchi can only be a substantial factor in causing Pflueger’s 

harm if National Union were obligated to advance Pflueger’s 

defense costs if the grand jury subpoena matter were timely 

tendered. If National Union was not obligated to advance 

Pflueger’s defense costs, Pflueger could not have been harmed by 

Noguchi’s failure to tender the grand jury subpoena matter or 

Noguchi’s role in the untimely tender. Therefore, Noguchi 

cannot be a legal cause of Pflueger’s harm if National Union 

were not legally obligated to advance Pflueger’s defense costs. 

See Thomas v. Kidani, 126 Hawaiʻi 125, 129, 267 P.3d 1230, 1234 

(2011) (“The causation element of legal malpractice is often 

thought of as requiring a plaintiff to litigate a ‘trial within 

a trial.’ That is, a plaintiff must show ‘both the attorney’s 

negligence and also what the outcome of the mishandled 
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litigation would have been if it had been properly tried.’”) 

(citation omitted); see also Gibbons v. Ludlow, 304 P.3d 239, 

244-45 (Colo. 2013) (noting the “case within a case” framework 

for analyzing legal malpractice is apt for analyzing broker 

malpractice, and applying the standard that “plaintiff must 

prove causation by showing that the claim underlying the 

malpractice action would have been successful ‘but for’ the 

attorney’s negligence” to the broker context).

Because Pflueger must demonstrate that National Union 

would be obligated to advance defense costs if the grand jury 

subpoena matter were timely tendered to establish causation,

Noguchi must demonstrate that National Union would not be 

obligated to advance Pflueger’s defense costs if the grand jury 

subpoena matter were timely tendered in order to negate 

causation. See Hawaiʻi Pizza Hut, Inc., 105 Hawaiʻi at 470-471, 

99 P.3d at 1054-55 (rejecting Pizza Hut’s argument that 

plaintiff did not meet her burden of establishing she was 

disabled by not being able to lift twenty-five pounds because 

she did not produce evidence the average person could lift more 

than twenty-five pounds and concluding it was Pizza Hut’s burden 

as the summary judgment movant to produce admissible evidence 

that the average person in the population cannot lift more than 

twenty-five pounds). Only then would Noguchi have demonstrated 
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that its role in the untimely tender was not a legal cause of 

Pflueger’s harm.

Instead, Noguchi offered the testimonies of Ngeo and 

Van Dina, which both suggested that National Union would not 

have considered the subpoenas to be a covered claim if timely 

tendered, in an attempt to negate the causation element of 

Pflueger’s claims. However, this testimony does not negate

causation. As Judge Hiraoka’s concurrence noted, if National 

Union denied coverage after the timely tender of Pflueger’s 

grand jury subpoena matter, Pflueger could then file a 

declaratory relief action, with or without a claim for bad 

faith. See Hawaiʻi Revised Statutes § 632-1 (2016) (providing 

that courts may grant declaratory relief where an actual 

controversy exists between parties); Best Place, Inc. v. Penn 

Am. Ins. Co., 82 Hawaiʻi 120, 132, 920 P.2d 334, 346 (1996) 

(holding that “there is a legal duty, implied in a first- and 

third-party insurance contract, that the insurer must act in 

good faith in dealing with its insured, and a breach of that 

duty of good faith gives rise to an independent tort cause of 

action.”); see also Steven Plitt, et al., Couch on Insurance § 

202:4 (3d ed. Nov. 2022) (“[I]f the insurer refuses to defend an 

action against the insured based on a claim actually within the 

coverage of the policy, on the ground that it is outside policy 

coverage, such a refusal . . . constitutes an unjustified 
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refusal and renders the insurer liable for breach of its 

contract. The failure to provide a defense when the insurer is 

obligated to do so is sufficient to sustain a cause of action in 

tort in addition to one for breach of contract.”). National 

Union’s disclaimer of coverage is not determinative of

Pflueger’s legal rights or legally cognizable harm – only a 

court’s ruling on the matter is.9 

Therefore, the circuit court’s grant of summary 

judgment in favor of Noguchi on the grounds that Van Dina’s and 

Ngeo’s testimonies negated the causation element was incorrect. 

The ICA majority’s acceptance of Noguchi’s causation argument 

was similarly incorrect.

In light of our foregoing analysis, Noguchi’s 

remaining arguments on certiorari do not need to be addressed.

IV. CONCLUSION

As the summary judgment movant, Noguchi cannot refute 

the causation element by demonstrating National Union would have 

denied coverage if Pflueger’s grand jury subpoena matter were 

 

9 Indeed, Noguchi’s argument leads to an absurd result. The insurer 

would determine whether the insured had a legally cognizable harm sufficient 

for causation, and would effectively insulate insurance brokers from 

liability by stating more than one ground for the denial of coverage (which 

insurers may be incentivized to do). See generally, Steven Plitt, et al., 

Couch on Insurance § 198:52-55 (3d ed. Nov. 2022) (discussing waiver and 

estoppel of an insurer’s defenses based on the insurer’s disclaimer of 

coverage); see also Van Dina’s testimony stating: “generally you try and be 

as thorough as you can. Not to say that you throw in the kitchen sink, but –

but you try and – really anything that’s going to be applicable is 

applicable.”
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20

timely tendered to National Union. Rather, Noguchi had to 

demonstrate that even if Pflueger’s grand jury subpoena matter

were timely tendered, National Union would not have been legally 

obligated to advance Pflueger’s defense costs. Because the 

circuit court and the ICA majority incorrectly analyzed 

Noguchi’s burden regarding the causation element, we vacate the 

ICA’s October 5, 2022 Judgment on Appeal, and remand to the 

circuit court for proceedings consistent with this opinion. 

Christopher Shea Goodwin

for petitioner

Noguchi & Associates, Inc.

Lyle S. Hosoda,

Kourtney H. Wong and

Spencer J. Lau for 

respondent Pflueger, Inc. 

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

/s/ Robert D.S. Kim